General Sales Conditions
1.Applicability
These general conditions for sale are applicable to sales from Smarteq AB (publ) and its subsidiaries (”Smarteq”).
2. Formation of Contract
2.1 Upon receipt of a purchase order, Smarteq will send the Purchaser a written order confirmation. A contract (”Contract”) based on Smarteq order confirmation is deemed to be entered into between Smarteq and the Purchaser at the earlier of
(a) the day Smarteq receives a copy of the order confirmation duly signed by the Purchaser, or
(b) ten (10) days from the date of the order confirmation, provided, however, that the Purchaser has not in the meantime made any objections thereto.
2.2 Unless otherwise agreed in writing, these General Conditions for Sale will constitute an integral part of the Contract.
3. Drawings and Descriptive Documents
3.1 The weights, dimensions, capacities, prices, performance ratings and other data included in catalogues, prospectuses, circulars, advertisements, illustrated matter and price lists as expressed in Smarteq general product information constitute an approximate guide. These data shall not be binding save to the extent that they are by reference expressly included in the Contract.
3.2 All drawings and technical documents intended for use in the construction and/or manufacture of any product delivered to the Purchaser or a portion thereof shall remain the exclusive property of Smarteq. They may not, without Smarteq written consent, in any way be utilized by the Purchaser or copied, reproduced, transmitted or communicated to a third party or be used by the Purchaser in competition with Smarteq.
4. Packing
Prices shown in price lists, offers, catalogues or other documents issued by Smarteq shall be deemed to apply to products transportation packed in accordance with the packing standard from time to time applied by Smarteq. Any specially required packing due to the Purchaser’s location and/or special requirement is not included in the above mentioned prices.
5. Acceptance Test
Acceptance tests (if any) shall be carried out upon the Purchaser’s reasonable request and at the Purchaser’s cost at Smarteq site during normal working hours after agreement with Smarteq as to date and time.
6. Passing of Risk and Title
6.1 The time at which the risk of loss of or damage to the products shall pass from Smarteq to the Purchaser shall be fixed in accordance with the International Rules for Interpretation of Trade Terms (Incoterms 2000) of the International Chamber of Commerce in force at the date of the Contract. If no
specific written agreement is made between Smarteq and the Purchaser, as to which specific trade terms are to be applied, the products shall be deemed to be delivered ”Ex Works, Smarteq
warehouse”.
6.2 Title to the products delivered to the Purchaser remains with Smarteq until the full purchase price has been paid by the Purchaser to Smarteq.
7. Delivery
7.1 Unless otherwise agreed in writing, the delivery time shall run from the latest of the following dates:
(a) Date of Contract as defined in Clause 2.1,
(b) Date on which Smarteq receives note of the issue of a valid import license where such is necessary for the sale from Smarteq to the Purchaser
(c) Date of receipt by Smarteq of such payment in advance as may be agreed in writing between Smarteq and the Purchaser, or
(d) Date of receipt by Smarteq of technical data and documentation where such is necessary for the execution of the order from the Purchaser.
7.2 If a fixed time for delivery has been agreed between Smarteq and the Purchaser and such date is exceeded by more than four weeks, and this is solely attributable to Smarteq, the Purchaser is entitled to a reduction of the purchase price payable for the undelivered products. The price reduction shall be a maximum of zero point five per cent (0,5 %) of the purchaser price for the undelivered products, provided, however, that the Purchaser can show that the Purchaser has suffered a corresponding loss because of the delay. The price reduction is calculated for each full week starting from the fourth week of delay and the price reduction shall in total not exceed five per cent (5 %) of the purchase price for the undelivered products.
7.3 The price reduction determined above shall mean the full and final compensation by Smarteq to the Purchaser in respect of delays in delivery under the Contract. The Purchaser shall not be entitled to deduct the price reduction from any payments to be made to Smarteq under the Contract.
8. Payment
Payment shall be made in the manner and at the time or times stipulated by Smarteq. If the Purchaser does not pay an invoice when it becomes due for payment, Smarteq reserves the right to stop delivery of products to the Purchaser until the invoice has been duly paid. Smarteq agrees that this right shall not be executed without giving the Purchaser prior notice and a reasonable time period to settle the invoice. Without prejudice to any of its other rights, Smarteq may charge the Purchaser all or parts of the costs incurred in collecting amounts due for payment. In addition hereto, Smarteq
may from the date on which the Purchaser was in default charge a penalty interest on unpaid amounts at an annual rate of eighteen percent (18 %).
9. Pricing
Prices are in accordance with written offers or contracts from Smarteq. The prices, fees and other charges of Smarteq do not include value added tax, sales tax and similar taxes as well as any city, municipal, state or federal taxes or any withholding taxes, whether currently imposed or imposed in the future, excluding tax on income. If any such tax is found to be applicable, the appropriate amount of tax shall be invoiced to and paid by the Purchaser to Smarteq at the same time and on the same terms as applied to the payment due.
10. Cancellation
11. Warranty
11.1 Smarteq manufactures products, which are inspected and submitted to final test before shipment.
If, within the warranty period, any defect is discovered in whole or part of the products with respect to material or workmanship and which should reasonably have been expected to be within Smarteq’s control, the warranty procedure described below will apply.
11.2 The Purchaser shall contact Smarteq before any warranty shipment is sent. Smarteq will provide a warranty number for the return shipment to ensure a proper tracking of the goods and of the
warranty process. A claim report is required for each returned item and it must be attached to the corresponding item in the warranty shipment.
11.3 Having received the warranty number the Purchaser may return the warranty goods DDP (Incoterms 2000) to Smarteq’s warehouse.
11.4 Smarteq should upon arrival register the return shipment and inform the Purchaser of the
handling. The aim is to clear all warranties within one (1) month from arrival. No warranty shipment will be accepted if returned to Smarteq without prior contact.
11.5 After having inspected the warranty goods and confirmed it to be faulty Smarteq has two options:
(a) Issue a credit note.
(b) Send free replacement for the defective parts/items DDP (Incoterms 2000). Smarteq takes no responsibility for defects in connection with the replacement work at the Purchaser’s site.
11.6 A new warranty period shall apply, under the same terms and conditions as those applicable to the original parts, for those parts supplied in accordance with these warranty conditions, although no longer than three (3) months after the end of the original warranty period.
11.7 This warranty does not apply to defects caused by normal wear and tear, abnormal conditions of working, accidental damage, improper handling, or neglect of instructions, given by Smarteq. It does not cover defects caused by faulty maintenance or from alterations or repair carried out without Smarteq authorization. The warranty does not include consumable parts in the products.
11.8 The warranty period is twentyfour (24) months from the date of delivery from Smarteq.
11.9 For items where no errors can be found, including guidance of the provided claim rapport, the Purchaser has two options:
(a) Have the items sent back by Smarteq Ex Works to the Purchaser.
(b) Have the items scrapped by Smarteq on Smarteq’s expense.
12. Limitation of Remedies
12.1 In all situations involving performance or non-performance of products delivered to the Purchaser, the Purchaser’s sole remedy is set forth in Clause 11. For any other claim concerning performance or non-performance by Smarteq pursuant to, or in any way related to the subject matter of the Contract, the Purchaser shall be entitled to recover actual, proven damages to the limits set forth herein.
12.2 In no event will Smarteq be liable for any damage caused by the Purchaser’s failure to perform its responsibilities or for any indirect consequential damages including, but not limited to, loss (whether direct or indirect) of profits or business or for anticipated savings or for any incidental damages or for any claims made against the Purchaser.
12.3 Smarteq’s liability for damages to the Purchaser for any cause whatsoever shall be limited to the purchase price paid to Smarteq of the products delivered to the Purchaser. The limitation of liability set forth in the preceding sentence will not apply to claims for personal injury or damage to real property or tangible property in cases of intentional misconduct or gross negligence.
13. Intellectual Property Rights
13.1 There may be patents, utility models, trademarks, trade names, design patterns, copyrights and other intellectual property rights relating to the products delivered to the Purchaser that belong to Smarteq. The Purchaser agrees to respect any such intellectual property rights and understands that the use of Smarteq’s intellectual property rights pursuant to the Contract does not include or cause the transfer of ownership thereof or give any proprietary rights in any of them to the Purchaser. The Purchaser agrees to inform Smarteq as soon as it receives any knowledge of any intellectual property right belonging to or used by Smarteq being infringed or allegedly infringed.
13.2 To Smarteq’s knowledge, no intellectual property rights of third parties are infringed by
manufacture, sale or use of the products delivered to the Purchaser or by any portion thereof. Smarteq shall indemnify the Purchaser against any infringement claim if a product or any portion thereof
infringes any intellectual property rights in a country where Smarteq markets the same or a similar product as provided to the Purchaser (unless the infringement is caused by Smarteq’s adherence to technical specifications, drawings, etc provided by the Purchaser) and Smarteq will pay resulting costs, damages and attorney’s fees finally awarded by a court for such claim provided that the Purchaser shall
(a) Notify Smarteq promptly in writing of any allegation of infringement, (b) Make no admission relating to the alleged infringement,
(c) Allow Smarteq to conduct all negotiations and proceedings, and (d) Give Smarteq, at Smarteq expense, all reasonable assistance.
13.3 If a product delivered to the Purchaser or a portion thereof becomes, or Smarteq believes it is likely to become, the subject of an allegation referred to in Clause 13.2, Smarteq may, at its option and expense, either secure for the Purchaser a right of continued use or replace or modify the product so that it becomes non-infringing, provided that any such replacement or modification does not in a negative way affect the performance of the product. If neither of these alternatives is available on terms which Smarteq judges to be reasonable, the Purchaser shall upon written notice from Smarteq return such items of the product to Smarteq. Smarteq agrees to grant the Purchaser a credit equal to the depreciated price paid to Smarteq by the Purchaser for the returned products (calculated on a straight line basis over a five-year life).
13.4 This Clause 13 states Smarteq entire obligation to the Purchaser regarding infringement of intellectual property rights. Smarteq will have no obligation with respect to any claim based upon the Purchaser’s modification of a product or its combination, operation or use with products not delivered by Smarteq. The Purchaser shall indemnify and hold Smarteq harmless from and against all claims, proceedings and expenses arising from such modification, combination, operation or use.
14. Force Majeure
14.1 Neither Smarteq nor the Purchaser shall be liable to the other for any delay or non-performance of its obligations under the Contract in the event and to the extent that such delay or non-performance is due to an event of Force Majeure (as defined hereinafter).
14.2 Events of Force Majeure are events beyond the control of a party or any of its sub-contractors which occur after the date of Smarteq’s order confirmation referred to in Clause 2.1 and which were not reasonably foreseeable at the time and whose effects are not capable of being overcome without unreasonable expense and/or loss of time to the party concerned. Events of Force Majeure shall include (without being limited to) war, civil unrest, strikes, lockouts and other general labour disputes, acts of government, natural disasters, exceptional weather conditions, breakdown or general
unavailability of transport facilities, accidents, fire explosions and general shortages of energy and materials.
14.3 A party directly affected by an event of Force Majeure shall lose the right to rely on the same,
occurrence of the event, that party gives the other party written notice thereof. When the event of Force Majeure has come to an end, the said other party shall be notified and also, if possible, be informed when any measure postponed by the event will be effected.
15. Sub-Contractors
Smarteq has the right to sub-contract any part of its obligations under the Contract to independent contractors selected by Smarteq.
16. Governing Law
The Contract shall be governed by, and construed and enforced in accordance with the substantive laws of Sweden without regard to its principles of conflicts of laws or the United Nations Convention on the International Sale of Goods.
17. Disputes
Any and all disputes, controversies and claims arising out of or in connection with the Contract, or the breach, termination or invalidity thereof, shall be settled in arbitration in accordance with the rules of the Arbitration Institute of the Stockholm Chamber of Commerce. Unless the parties agree otherwise, the arbitration proceedings shall be conducted in Stockholm, Sweden.
